1 IBIA 195

ESTATE OF ANDY WILLIAMS

Decided November 30, 1971

Indian Probate: Reopening: Waiver of Time Limitation

A petition to reopen filed more than thirty years after entry of the order determining heirs and at least seven years after the petitioner acquired the belief that she was related to the decedent without explanation for the delay will be denied for the reason that the petitioner has been dilatory in submitting her petition.

INTERIOR BOARD OF INDIAN APPEALS

This matter is before the Board upon the petition of Messie Mix for the reopening of the Estate of Andy Williams, Probate No. 42945–40.1 The Petition for Reopening 2 was originally filed with the Sacramento Area Office, Bureau of Indian Affairs, and was forwarded to the Hearing Examiner, Alexander H. Wilson, with the recommendation that the Estate of Andy Williams be reopened. In forwarding the petition to this Board, the Hearing Examiner has included transcripts of testimony taken in the related cases of Ella Short Pada,3 Probate No. 49694-38, Conom Pada, aka Connan Pedee,* Probate No. F-110-64, circa 1964, and Stella Anita Williams,5 Probate No. F‐23–71, circa 1970. Since more than three years has elapsed following the entry of the Order Determining Heirs, the Examiner's jurisdiction was exhausted and he properly forwarded the petition to this Board for its determination whether the discretion retained by the Secretary to waive regulations should be exercised herein."

1 The final order closing this estate, viz., Order Determining Heirs, was entered July 29, 1940.

2 The petition itself is an undated, one-paragraph document, notarized on July 12, 1971, stating: "I, Messie Mix, petition the estate of Andy Williams, Probate No. 42945-40 be reopened on the basis I did not inherit in the estate as a surviving daughter nor did I receive a notice of the estate hearing to enable me to attend such a hearing and offer my testimony about my father and mother."

3 The petitioner's mother.

4 The second husband of petitioner's mother, Ella Short Pada. The Summary of Report on Heirs in the Ella Short Pada probate file shows Conom Pada to be the petitioner's father.

5 A daughter of the decedent, Andy Williams, by his second wife, Mamie Jim Stonecoal Williams.

• Pursuant to 25 CFR 1.2 "the Secretary retains the power to waive or make exceptions to his regulations *** in all cases where permitted by law and * ** such waiver or

November 30, 1971

The decedent having died intestate, his estate was distributed under the California law of descent and distribution in equal shares to three children, Evelyn Williams O'Neill, Theodore John Williams, and Stella Anita Williams. The estate originally consisted of four allotments in California having a total appraised value of $2,371.67. Three of the allotments have since been disposed of and the only remaining asset of the estate is the fourth allotment which is presently valued at $2,200.

The factual question raised by the petitioner is whether the decedent, Andy Williams, or Conom Pada, was the petitioner's father. No point would be served by a lengthy recital of the evidence contained in the various probate files which constitute the record in this proceeding. Suffice it to say that at the hearing held herein in 1940, substantial evidence was introduced to the effect that Andy Williams had six children; that he left only the three above-named children living at the time of his death and that the other three children died in infancy. The petitioner, Messie Pada, has testified on both sides of the question relating to her paternity. Thus, at the hearing in her mother's estate in 1938 the petitioner, who was 22 years old at the time, testified that her father was Conom Pada,' and that her mother had no children by Andy Williams. However, at an Indian probate hearing in 1964 in the Estate of Conom Pada, the petitioner testified that her father was Andy Williams. She has not indicated, why she changed her testimony or from what source the most recent theory of her paternity stemmed, if there was such a source. We can only conclude that this is a change of mind on her part not produced by "newly discovered" evidence.

We held in Estate of Samuel Picknoll (Pickernell), 1 IBIA 168, 78 I.D. 325 (1971), that as prerequisites to the exercise of Secretarial discretion to grant petitions for reopening filed beyond the three-year limitation, it must appear from the record, including the petition and its supporting affidavits or other documentation, that: (1) the petitioner has been diligent in asserting his claim; (2) the original probate determination resulted from fraud, accident, or mistake of such a com

exception is in the best interest of the Indians." See, Estate of George Minkey, 1 IBIA 1 (1970), aff'd on reconsideration, 1 IBIA 56 (1970) and Estate of Eliza Shield Him, 1 IBIA 80 (1971). The three-year limitation itself appears in 43 CFR § 4.242(a), 36 F.R. 7197 (April 15, 1971).

7 Veline Pada, a daughter of Conom Pada and Ella Short Pada whose parentage is not in doubt, also testified therein that petitioner's father was Conom Pada.

pelling nature that a manifest injustice will occur unless reopening is granted; and (3) there exists a strong possibility that the petitioner, upon reopening will be able to carry his burden of proof and establish his claim by a preponderance of the evidence.

We doubt that petitioner would be able to sustain her burden of proof if the matter were reopened. The original determination in the Andy Williams' probate matter in 1940 was supported by substantial evidence in the record at that time. The record as it now stands also contains substantial support for the original decision. The petitioner has made no allegation of or showing of fraud, accident, or mistake. Nor is the petition itself supported by affidavits or documentation which indicate that a manifest injustice has occurred or which demonstrate a likelihood that she would prevail if this case were reopened. Finally, it appears that the petitioner has been dilatory in pursuing her claim. There is no explanation why she permitted more than 30 years to pass before filing her petition. Even after testifying at the 1964 hearing that she was the daughter of the decedent, she waited an additional seven years before seeking reopening. In such circumstances, the original probate determination will not be disturbed. Estate of Samuel Picknoll (Pickernell), supra; Estate of Abel Gravelle, IA–75 (April 11, 1952).

Accordingly, pursuant to the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 211 DM 13.7; 35 F.R. 12081, the petition of Messie Mix for reopening is denied and the Order Determining Heirs entered herein on July 29, 1940, by Oscar L. Chapman, Assistant Secretary, is affirmed. This decision is final for the Department.

I CONCUR:

MICHAEL A. LASHER, Alternate Member.

DAVID J. MCKEE, Chairman.

8 The petition is not supported by affidavits from persons who would be in a position to give testimony of probative value on petitioner's behalf or by birth certificates, letters, ehurch records, or similar memorabilia. The file does contain a letter from Mrs. Frances Pada Martinez, whose relationship to the petitioner is not shown. Mrs. Martinez alleges that her (Mrs. Martinez') mother and the decedent were both present when the petitioner was born at Alturas, California, on June 2, 1916, and that her mother told her that the petitioner was one year and four months when Ella Short married Conom Pada. Mrs. Martinez also states that the petitioner's birth certificate shows her name to be "Missie (sic) William Pada."

TO INDIAN TRIBES

THE EIGHTEEN-YEAR-OLD VOTE AMENDMENT

AS APPLIED TO INDIAN TRIBES*

Indian Tribes: Sovereign Powers-Indians: Civil Rights-Indian Reorganization Act-United States-Voting

The Twenty-Sixth Amendment to the Constitution, providing, inter alia, that "the United States" shall not deny or abridge the right of eighteen-year-olds to vote, applies to Indian tribes' elections called by the Secretary pursuant to the Indian Reorganization Act or other act, but, because of the fundamental right of a tribe to govern itself, the amendment does not apply to Indian tribes in purely tribal elections.

M-36840

To: COMMISSIONER OF INDIAN AFFAIRS.

November 9, 1971

SUBJECT: THE EIGHTEEN-YEAR-OLD VOTE AMENDMENT AS APPLIED TO INDIAN TRIBES.

By memorandum of August 16, 1971, you requested an opinion as to the applicability of the Twenty-Sixth Amendment to the United States Constitution to Indian tribes. A response requires consideration of: (1) the tribes' fundamental right to govern themselves; and (2) criteria for determining actions of "the United States" under the amendment.

The Twenty-Sixth Amendment reads:

Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or any State on account of age.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

I

Two important aspects of tribal sovereignty are: (1) the power of a tribe to govern itself; 1 and (2) the inapplicability to Indian tribes of the United States Constitution and general acts of Congress, unless Congress manifests an intent to include them.2 First: A tribe's power

*Not in Chronological Order.

1 See, e.g., Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965); Native American Church of North America v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956); Solicitor's Opinion, 55 I.D. 14, 30-32 (1934).

2 Elk v. Wilkins, 112 U.S. 94, 100 (1884); McCandless v. United States ex rel. Diabo, 25 F.2d 71 (3d Cir. 1928), aff'g sub nom. United States ex rel, Diabo v. McCandless, 18 F.2d 282 (E.D. Pa. 1927); United States v. 5,677.94 Acres of Land, 162 F. Supp. 108, 110-111 (D. Mont. 1958); Seneca Nation of Indians v. Brucker, 162 F. Supp. 580, 581-582 (D.D.C. 1958), aff'd, 262 F.2d 27 (D.C. Cir. 1958), cert. denied, 360 U.S. 909 (1959); and Nicodemus v. Washington Water Power Co., 264 F.2d 614, 617 (9th Cir. 1959). But see F.P.C. v. Tuscarora Indian Nation, 362 U.S. 99 (1960).

78 I.D. No. 12

to govern itself must include “* * * the right to define the powers and duties of its officials, the manner of their appointment or election * * *." Solicitor's Opinion, 55 I.D. 14, 30 (1934). Second: On its face, the Twenty-Sixth Amendment does not purport to limit the power of Indian tribes to determine for tribal elections the age qualifications of voters, and there is nothing in the legislative history of the amendment that would indicate that Congress intended that the amendment should apply to tribal elections.*

In other words, even if a tribe's constitution includes a clause such as the following, for example, from that of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, that the tribes:

*** secure to ourselves and our posterity the power to exercise certain rights of self-government not inconsistent with Federal, State, and local laws, * * * it is clear that the Twenty-Sixth Amendment was not intended to constitute, and does not constitute, such an "inconsistent" law; the Twenty-Sixth Amendment is not inconsistent because it was not intended to speak, and does not speak, to the basic right of tribal selfgovernment possessed by all recognized tribes.

II

Actions of "the United States" under the amendment would include not only acts of Congress, but also judicial action and administrative action. See, e.g., for definitions of "state action" under the Fourteenth Amendment, Shelley v. Kraemer, 334 U.S. 1, 14 et seq. (1948), and cases therein cited; Smith v. Allwright, 321 U.S. 649 (1944); Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 343 (1938); Virginia v. Rives, 100 U.S. 313, 318 (1880).

The provisions in the Indian Reorganization Act that limit the right

3 Tribal elections refer to those that are authorized under tribal constitutions or other organic documents. For tribes organized under the Indian Reorganization Act, June 18, 1934 (48 Stat. 984, 25 U.S.C. §§ 461 et seq.) or other act, this would include elections of officials and referenda concerned with domestic and internal business, but not referenda adopting or amending a constitution. For tribes organized traditionally (those not organized under the Indian Reorganization Act or other act) this would include all elections of officials and all referenda, concerning not only domestic and internal business, but also the adoption of tribal constitutions and amendments thereto.

4 See, for an analogous example, Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971), in which the court observes that the Indian Civil Rights Act, April 11, 1968, 82 Stat. 77, 25 U.S.C. §§ 1301, 1302, “* * is much narrower than the language of the Fourteenth Amendment, and it omits entirely the suffrage provisions of the Fifteenth Amendment.” The court thus assumes, as we do, that an amendment restricting only "the United States" does not, without more (such as a congressional act), restrict also tribal rights of self-government.